FILED WITH THE 

COURT SECURITY OFFICER 

g~~~:~"

UNITED STATES 

-

DISTRICT COURT
 

FOR THE DISTRICT OF COLUMBIA
 

ALLA	 ALI BIN ALI AHMED, 

et al., 

Petitioners, 

v.	 Civil Action No. 05-1678 (GK) 

BARACK	 H. OBAMA, et al., 

Respondents. 

MEMORANDUM OPINION 

Petitioner AlIa Ali Bin Ali Ahmed ("Ali Ahmed" or "the 

Petitioner") has been detained since 2002, when he was a teenager, 

at the United States Naval Base at Guantanamo Bay Cuba. 

Respondents ("the Government") argue that his detention is 

justified under the Authorization for the Use of Military Force, 

Pub. L. No. 107-40 § 2 (a), 115 Stat. 224, 224 (2001) ("AUMF"), 

which grants the Executive the power to detain individuals engaged 

in certain terrorist activities. The Petitioner disagrees, denies 

that he has ever engaged in such activities, and has filed a 

petition for a writ of habeas .corpus [Dkt. No.1]. 

The matter is before the Court on Cross-Motions for JUdgment 

.on the. Record [Dkt. Nos. 183 and 189]. Upon consideration of the 

Motions, the Oppositions, extensive oral argument, and the entire 

-

record herein, Ali Ahmed's habeas -
corpus petition and Motion are 

hereby granted. 

I . BACKGROUND 

A. Procedural History 

Petitioner filed his habeas corpus petition on August 22, 2005 

[Dkt. No. 1J. After filing I there was extensive preliminary

litigation regarding ·the Court's jurisdiction to entertain 

detainees' petitions, the applicability of various statutes, and 

the appropriate procedures to be used. 

After more than six years of litigation, the most important 

legal issue was resolved by the Supreme Court in Boumediene v. 

Bush, 553 U.S. , 128 S. Ct . 2229 (2008) . The Court ruled that 

detainees at Guantanamo Bay, none of whom are citizens of the 

United states, are entitled to bring habeas petitions under Article 

I of the Constitution, and that the federal district courts have 

jurisdiction to hear such petitions. 

The Court did not define what conduct the Government would 

have to prove, by a preponderance of the evidence, in order to 

justifiably detain individuals -- that question was left to the 

District Courts. Id. at 2240 ("We do not address whether the 

President has the authority to detain these petitioners nor do we 

hold that the writ must issue. These and other questions regarding 

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the legality of the detention -
are to be resolved in the first 

instance by the District Court. ") . Nor did the Supreme Court lay 

down specific procedures for the district courts to follow in these 

cases. 

Boumediene was, however, definitive on at least two points: 

first, that the detainees are entitled to a prompt hearing, 128 

S.Ct. at 2275 ("The detainees in this case are entitled to a prompt 

habeas corpus hearing."), and second, that the District Courts are 

to shape the contours of those hearings, id. at 2276 (finding that 

balancing protection of the writ and the Government's interest in 

military operations, "and the other remaining questions [,] are 

within the expertise and competence of the District Court to 

address in the first instance."). 

In an effort to provide the prompt hearings mandated by the 

Supreme Court, many of the judges in this District agreed to 

consolidate their cases before former Chief JUdge Thomas Hogan, for 

purposes of streamlining procedures for, and management of, the 

several hundred petitions filed by detainees. See Order (July 1, 

2008) [Civ. No. 08-442, Dkt. No. l.]. On November 6, 2008, after 

extensive briefing from Petitioners' counsel and the Government, 

Judge Hogan issued a Case Management Order ("CMO") to govern the 

proceedings. This Court adopted, in large part, the provisions of 

that Order, while modifying it somewhat, as noted in Appendix A to 

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Dkt. No. 152. -


Much pre-hearing activity has taken place under this Court's 

Case Management Order. The Government has filed the exculpatory 

evidence, automatic discovery, and additional discovery required 

under the CMO. The Government filed its Amended Factual Return on 

October 10, 2008, and amended it again on December 11, 2008. The 

Petitioner responded with his Traverse on March 12, 2009. After a 

period of extensive discovery, both parties fi led substantial 

briefs accompanied by extensive exhibits. 

On January 21, 2009 [Dkt. No. 129], the Court set April 14, 

2009, as the date for the "merits hearing" on the Cross-Motions for 

Judgment on the Record. The hearing was continued to April 16, 

2009. Less than a week before the original date for the hearing, 

and just before the Easter weekend, the Government informed 

Petitioner's counsel early in the day of April 9, 2009, and 

informed the Court later that afternoon at the Pre-Trial 

Conference, that it would be turning over to the Petitioner 

approximately 2000 pages of "newly available" material potentially 

related to the hearing. Over the holiday weekend, the Government 

refused to tell Petitioner's counsel whether the last-minute 

submission was either "inculpatory or exculpatory. II Tr. at 15, 19, 

21 (Apr. 16, 2009). 

The Government did not make clear at what point in time these 

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materials came into its possession. -
 What is clear is that they 

were packaged into a Factual Return and produced them in another 

petitioner's case on April 3, 2009. rd. at 18. The Government 

provided these materials to a second detainee's counsel on April 7, 

2009. rd. at 19, 27. Yet nothing was made available to 

Petitioner's counsel until April 10, 2009. On April 13, 2009, the 

Government submitted a subset of these documents to the Petitioner 

and the Court, referring to it as a Supplement to the record (Dkt. 

No. 205]. 

On April 14, 2009, Petitioner moved to strike this Supplement 

[Dkt. No. 207J. The Government claimed that it had pointed out to 

Petitioner's counsel information that related to Petitioner in the 

form of a roughly 200-page Supplement that pared down the larger 

filing (the "needle (in the haystack] ," according to the 

Government), and that logistical challenges related to compiling 

factual returns made late production unavoidable in this case. Tr. 

at 18-22 (Apr. 16, 2009). 

The Court granted the Motion to Strike on the grounds that 

there was no way that Petitioner could have carefully examined even 

the pared-down Supplement at the last minute while preparing for 

this Merits Hearing, nor could counsel have done any independent 

investigation of what was in the materials even if he had been able 

to read them all. The Supplement was not admitted as part of the 

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record. -


II. STANDARD OF REVIEW 

The Government bears the burden of establishing that detention 

is justified. See Boumediene, 128 S.ct. at 2270; Hamdi, 542 U.S. 

507, 533 -34 (2004). It must do so by a preponderance of the 

evidence. Order, Appendix A at § II.A (Feb. 12, 2009) [Dkt. No. 

152-2]; see also Basardh v. Obama, No. 05-889, slip op. at 10 n.12 

(D.D.C. Apr. 17, 2009). 

Initially, the Government took the position that Article II of 

the Constitution and the AUMF granted the President the authority 

to detain individuals. See Gherebi v. Obama, 2009 WL 1068955, at 

*8, *8 n.4 (D.D.C. Apr. 22, 2009). The Government asserted, "[a]t 

a minimum, . the ability to detain as enemy combatants those 

individuals who were part of, or supporting, forces engaged in 

hostilities against the United States or its coalition partners and 

allies." Resp't's Statement of ~egal Justification For Detention 

at 2 [Dkt. No. 103]. 

since the change in administration, the Government has 

abandoned Article II as a source of detention authority, and relies 

solely on the AUMF. Id. at *8 n.4. Further, it no longer uses the 

term "enemy combatant." Its refined position is: 

"[t]he President has the authority to detain persons that 

the President determines planned, authorized, committed, 

or aided the terrorist attacks that occurred on September 

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11, 2001, and persons who -
harbored those responsible for 

those attacks. The President also has the authority to 

detain persons who were part of, or sUbstantially 

supported, Taliban or al-Qaida forces or associated 

forces that are engaged in hostilities against the United 

States or its coalition partners, including any person 

who has committed a belligerent act, or has directly 

supported hostilities, in aid of such enemy armed 

forces." 

Resp't's Revised Mem. Regarding the. Gov's Detention Authority 

Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No. 

174J . 

III. ANALYSIS 

A. Evidentiary Presumptions 

As a preliminary matter, some attention must be given to the 

nature of the evidence that has been presented in this case, and 

how the Court, as fact-finder, will go about evaluating that 

evidence. In attempting to meet its burden, the Government has 

provided evidence in the form of classified intelligence and 

interview reports that allegedly justify the Petitioner's 

detention. The reports contain the statements of Petitioner, as 

well as statements made by other detainees, that the Government 

argues demonstrate the Petitioner's status as a substantial 

supporter of the Taliban and/or al-Qaida. 

The Government requested that a rebuttable presumption of 

authenticity be granted to all the exhibits it intends to 

introduce. Given its representations that the specific documents 

included in its case against Petitioner, as well as the documents 

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provided to Petitioner's counsel -
in discovery, have all been 

maintained in the ordinary course of business, the Court will 

presume, pursuant to Fed. R. Evid. 803(6), that its documents are 

authentic. 1 As provided for in the Case Management Order, the 

Government's exhibits will be granted a rebuttable presumption of 

authenticity and will be deemed authentic in the absence of any 

rebuttal evidence to the contrary. 

The Government has also requested that a rebuttable 

presumption of accuracy be granted to all the exhibits it intends 

to introduce. This request is denied for several reasons. 

First, there is absolutely no reason for this Court to presume 

that the facts contained in the Government's exhibits are accurate. 

Given the extensive briefing and oral argument presented by counsel 

during the discovery phase of this case, as well the exhibits 

submitted at the merits trial, it is clear that the accuracy of 

much of the factual material contained in those exhibits is hotly 

"[T)he requirement of authentication requires that the 

proponent, who is offering a writing into evidence as an exhibit, 

produce evidence sufficient to support a finding that the writing 

is what the proponent claims it to be." 2 K. Broun, McCormick on 

Evidence § 221 (6th ed.). See also 5 Christopher B. Mueller and 

Laird C. Kirkpatrick, Federal Evidence § 9.2 (3d ed.) ("rA] court 

called upon to resolve a dispute should not (at least in the 

absence of special circumstances) assume that a matter offered in 

evidence is what it appears on its face to be, or what the offering 

party claims it to be, but rather should require that party to 

establish by formal proof of some sort the identity or nature of 

the matter in question." 

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contested for a host of different -
 reasons ranging from the fact 

that it contains second- and third-hand hearsay to allegations that 

it was obtained by torture to the fact that no statement purports 

to be a verbatim account of what was said. 

Second, given the fact that this is a bench trial, the Court 

must, in any event, make the final judgment as to the reliability 

of these documents, the weight to be given to them, and their 

accuracy. Those final judgments will be based on a long, nonexclusive list of factors that any fact-finder must consider, such 

as: consistency or inconsistency with other evidence, conditions 

under which the exhibit and statements contained in it were 

obtained, accuracy of translation and transcription, personal 

knowledge of declarant about the matters testified to, levels of 

hearsay, recantations, etc.' 

Denial of the Government's request for a rebuttable 

presumption of accuracy does not mean, however, that the Government 

must present direct testimony from every ,source, or that it must 

offer a preliminary document-by-document foundation for 

admissibility of each exhibit. As the Supreme Court noted in 

;1 While the Supreme Court did suggest in Hamdi that a 

rebuttable presumption "in favor of the Government's evidence" 

might be permissible, 542 U.S. at 534, it did not mandate it. In 

Boumediene, the Court clearly left it to the District Courts to 

craft appropriate procedures. Boumediene, 128 S.Ct. at 2272. 

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Hamdi, 542 U.S. at 533-34, hearsay -
may be appropriately admitted in 

these cases because of the exigencies of the circumstances. 

Finally, while parties always retain the right to challenge 

the admissibility of evidence, the Court will be guided by the 

Federal Rules of Evidence, in particular Rule 402, providing that 

" (aJ 11 relevant evidence is admissible." Once all evidence is 

admitted into the record, the Court will then, in its role as factfinder, evaluate it for credibility, reliability, and accuracy in 

the manner described above. 

B. Mosaic Theory 

The Government advances six categories of allegations which, 

in its view, demonstrate that the Petitioner was detained lawfully. 

Above all, its theory is that each of these allegations -- and even 

the individual pieces of evidence supporting these allegations -­

should not be examined in isolation. Rather, "[t]he probity of any 

single piece of evidence should be evaluated based on the evidence 

as a whole, 1/ to determine whether, when considered "as a whole 11/ 

the evidence supporting these allegations comes together to create 

a "mosaic" that shows the Petitioner to be justifiably detained. 

Gov's Mot. For J. Upon the Administrative R. and Mem. in Supp. at 

2 (internal citation omitted) ("Gov's Mot."); see also Tr. at 46 

(Apr. 16, 2009) (describing mosaic theory). The Government argues, 

in this case and others, that "the evjdence meshes together to 

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demonstrate" that the Petitioner -
engaged in conduct that allows the 

Executive to detain him. Gov's Mot. at 24. 

The Court understands from the Government's declarations, and 

from case law,3 that use of the mosaic approach is a common and 

well-established mode of analysis in the intelligence community. 

This may well be true. Nonetheless, at this point in this long, 

drawn-out litigation the Court's obligation is to make findings of 

fact and conclusions of law which satisfy appropriate and relevant 

legal standards as to whether the Government has proven by a 

preponderance of the evidence that the Petitioner is justifiably 

detained. The kind and amount of evidence which satisfies the 

intelligence community in reaching final conclusions about the 

value of information it obtains may be very different, and 

certainly cannot govern the Court's ruling. 

Even using the Government's theoretical model of a mosaic, it 

must be acknowledged that the mosaic theory is only as persuasive 

as the tiles which compose it and the glue which binds them 

together just as a brick wall is only as strong as the 

individual bricks which support it and the cement that keeps the 

See, e.g., McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. 

Cir. 1983) (recognizing that the "mosaic-like nature of 

intelligence gathering" requires taking a "broad view" in order to 

contextualize information) (internal citations and quotations 

omitted) . 

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bricks in place. Therefore, -
if the individual pieces of a mosaic 

are inherently flawed or do not fit together, then the mosaic will 

split apart, just as the brick wall will collapse. 

A final point must be kept in mind. One consequence of using 

intelligence reports and summaries in lieu of direct evidence is 

that certain questions simply cannot be answered, i.e., there are 

no witnesses to cross-examine or deposition transcripts to 

consult. 4 Sizeable gaps may appear in the record and may well 

remain unfilled; each party will attempt to account for these 

deficiencies by positing what they think are the most compelling 

logical inferences to be drawn from the existing evidence. 

Accordingly, that existing evidence must be weighed and evaluated 

as to its strength, its reliability, and the degree to which it is 

corroborated. In any event, the Government bears the ultimate 

burden of showing by a preponderance of the evidence that 

Petitioner's detention is lawful. Just as a criminal defendant 

need not prove his innocence, a detainee need not prove that he was 

acting innocently. In sum, the fact that the Petitioner may not be 

able to offer neat answers to every factual question posed by the 

Government does not relieve the Government of its obligation to 

satisfy its burden of proof. 

No witnesses testified at the Merits Hearing. 

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C. The Government's Witnesses -


The Government's chief pieces of evidence are the statements 

made by four witnesses, who are or have been detained at Guantanamo 

Bay. The Government is not relying on any incriminating statements 

made by the Petitioner. For the Government to prevail, it must do 

so based largely on the strength of evidence provided by the thirdparty witnesses. The Court will first examine the reliability of 

each of those four witnesses, and then turn to the Government's 

specific allegations. 

1. ISN_­

The Government relies on the testimony of 

, an individual whose credibility has been 

cast into serious doubt -- and rejected -- by another Judge in this 

District. Gharani v. Bush, Civ. No. 05-429, classified slip op. at 

(emphasis in original) The Court agrees with Judge Leon's 

assessment. Although the Government tries to establish the 

statements and distinguish this case from 

Ali Ahmed. 

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Pe t. Ex . 56 -
 at 1- 2 . 

Second, his inculpatory testimony is merely that he "overheard" 

conversations at Guan~anamo Bay about Ali Ahmed's travels in 

Afghanistan. Gov. Ex. 26 _FM 40 (Jan. 5, 2005)) at 11. He

does not identify who made these statements and under what 

circumstances, or any details of the conversation. In addition to 

coming from an unreliable witness, the inculpatory statement 

offered by the Government is based upon mUltiple levels of hearsay. 

Finally, 

, has made accusations against a number of detainees at 

Guantanamo Bay. Many of those accusations have been called into 

question by the Government. See, e.g., Factual Return at ~32 n.4 

that describes 

credibility with interrogators as "in question"); but see id. 

In sum, he has shown himself to be an 

unreliable source whose statements have little evidentiary value, 

and that assessment is confirmed by the double-hearsay and lack of 

detail in his statement, as discussed supra. 

2. ISN_­

The Government also offers statements made by 

This detainee twice said that he 

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reliability because it 

The first 

Petitioner and 

Ex. 25 at ~2.P. The second 

degree of 

Gov. Ex. 4 at 

4. In a third interrogation/the witness denied knowing "anyone./I 

Pet.	 Ex. 83 IIIIIIIIICITF Report (Sept. 23/ 2003» at 1. It is very 

difficul t to assess the recantation of his two _

At best, it appears that the detainee was being 

totally uncooperative. See id. at 1. 

However / and most importantly statements / in and

of themselves, are equivocal and lacking in detail or description. 

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This type of evidence, riddled as it is with equivocation and 

speculation, is similar to what the Court of Appeals found to be 

2008). 

statements are not entitled to significant weight . .. 3. ISN.­

responded that the 

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saw when he was being smuggled -
from Zurmat to Banu." Gov. Ex. 23 

IIIIIIII FM 40 (Nov. 8, 2002)) at 3. Zurmat is in Afghanistan and 

Banu is in Pakistan. 

Gov. Ex. 24 

There is no explanation of 

coming from or how the witness knew 

him. The unnamed author of the intelligence report described 

as having trained at Al Farouq, and then fleeing to 

pakistan when the United states attacked. rd. at 1. The author 

also characterizes the witness' reliability as 

Gov. Ex. 3 

Petitioner counters that 

at 1-2. 

statements are unreliable. 

He points first to the fact that the witness has been diagnosed by 

military medical staff as having a "psychosis." Pet. Ex. 101 

(Detainee Medical Profile Flowsheet).6 Given the fact that there 

It is very troubling that Petitioner learned of the 

witness' medical condition only through the diligent work of his 

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6 
are no details in these documents, -
such as duration, seriousness, 

or treatment of this condition, the Court does not give them a 

great deal of weight, although a witness' mental health always has 

some relevance to his reliability. 

When, in October of 2003, the witness of 

detainees captured at he did not identify the 

Petitioner; rather, he claims that he did not know any of the men 

until he arrived at Guantanamo 'Bay.? Pet. Ex. 

CITF Report (Oct. 4, 2003)) at 1. 

Along with this background of mental health problems (limited 

as that information is) and inconsistent identifications, there is 

evidence that _ underwent torture, which may well have 

affected the accuracy of the information he supplied to 

counsel, and not as a result of the Government I s obligation to 

provide him exculpatory information about the statements upon which 

the Government relies in justifying detention. 

Petitioner's counsel obtained this information when 

See CMO at § I.D.l. 

counsel turned over the document to him. It appears that 

counsel was able to retrieve the medical records only by 

resorting to a FOIA request. Tr. at 106 (Apr. 16, 2009). 

7 The Court, inquired as to whether there is~

that the Petitioner was included among the detainees .............. liliiii Tr. at 114 (Apr. 16, 2009). The Government had no evidence 

establishing that he was or was not part of the 

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interrogators. 1IIIIIIII spent -
time at Bagram and the Dark Prison, 

and alleges that he has been tortured. Pet. Ex. 86 (Declaration of 

) at ~~8i 12-14. 

The witness has also recanted his story that another detainee 

took the trip with him from Zurmat to Banu. Pet. Ex. 88 IIIIIIII 

CITF Report (July 25, 2003)) at 2. He claims that he made 

inculpatory statements against that detainee because he 

feared further torture. Pet. Ex. 88 at ~14. The Government claims 

that the "residual fear" of torture had been overcome by June of 

2004, when he identified Petitioner Gov. Ex. 3;

Tr. at 152 (Apr. 16, 2009), since he had already, back inlllllllll 

IIIIIIIIIbeen unafraid to tell his interrogators that he had given 

them bad information in the past, Pet. Ex. 87. 

Based on two of these interrogations 

_ - - one where he was honest with authorities about being 

uncooperative and one where he again identified the Petitioner -­

the Government asks the Court to assume that his alleged 

mistreatment at several detention centers was effectively erased 

from his memory. The Government has presented no evidence to 

dispute the allegations of torture at Bagram or the Dark Prison. 

See, e. g., Tim Golden, In D.. S. Report, Brutal Details of 2 Afghan 

Inmates' Deaths, N.Y. Times, May 20, 2005, 

http://www.nytimes.com/200S!OS!20/international/asia/ 

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20abuse.html#. Nor has the Government -
 presented any eV~dence that 

IIIIIIII claimed to be unaffected by past mistreatment. Therefore, 

the Court cannot infer that past instances of torture did not 

impact the accuracy of later statements. 

4. ISN.­

The Government alleges that a statement made 

demonstrates that Ali Ahmed 

received military training. _ identified _ from a 

photograph shown to him at Bagram. The intelligence report says 

that Al-Qahtani stated, "191 -liliiii received military training in 

Afghanistan near Kabul." Gov. Ex. 1 (IIIIIIIISIR (June 17, 2002)) 

at 9. The reliability of this identification is discussed in depth 

infra, at Part III.D.2. 

D. Government Allegations 

The Government rests its case on the totality of evidence 

encompassing six maj or disputed factual issues: the Petitioner 

fought in Afghanistan, trained in Afghanistan, used the kunya 

_ traveled in Afghanistan with al-Qaida and/or Taliban 

members, stayed at with al-Qaida and/or Taliban members, 

For his part, Petitioner claims to have gone to Pakistan 

before the attacks on September 11 (and the Government no longer 

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challenges that particular fact) -
in order to find a religious 

school at which to study the Koran. He denies ever going to 

Afghanistan, training at an AI-Qaida camp, fighting against anyone, 

or being a member of a terrorist group. Traverse at 1-2, 25-27; 

Gov. Ex. 8 (ISN 692 FM-40 (July 30, 2003)) at 2 (reporting that 

Petitioner denied ever traveling to Afghanistan); Tr. at 38 (Apr. 

17, 2009). Ali Ahmed admits that he was staying at a 

guesthouse for Yemenis in Faisalabad, Pakistan, where he was 

arrested 

see also Pet. Ex. 11 

in March of 2002. Gov. Ex. 43 (ISN 

at 3 ( "NOTE: in 

the files of those captured with the source, he is mentioned but 

not well-known by any of the others with him at the 

The Government's argument challenges a number of facts in 

Petitioner's story, attempts to demonstrate that his explanation 

that the Government makes about the 

For these allegations, the Court 

Such a finding is not a 

substantive ruling on the alleged activities of these detainees, 

all or some of whom have habeas petitions pending in this District 

Court. 

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-
 and that Petitioner's lies 

about certain facts cast doubt on his entire explanation of his 

activities and whereabouts. 

1. Participation in Battle 

The most serious charge leveled by the Government is that 

Petitioner joined al-Qaida and/or the Taliban in battle against the 

United States and/or coalition forces. If proven, this fact alone 

would almost certainly justify Ali Ahmed's detention. The 

Government does not base the charge on a hearsay confession made by 

Petitioner; in fact, he denies involvement in any terrorist 

activity whatsoever. Traverse at 25-27. Nor does the Government 

base this charge on direct allegations made by third parties. The 

Government admits it has presented no evidence stating that Ali 

Ahmed has participated in battle. Pet. Ex. 6 (Requests for 

Admission) at ~41; Resp't's Factual Response Statement at ~~28-29,

31 [Dkt. No. 198]; Tr. at 22 (Apr. 17, 2009). 

Rather, the Government asks that Ali Ahmed's participation in 

battle be inferred from a web of statements made by witnesses who 

were commenting on Petitioner's non-military activity. The 

Government urges the court to adopt its theory that because 

witnesses it offers as credible claim that Petitioner had military 

training, went to Afghanistan, and then traveled with and stayed in 

the company of al-Qaida fighters, and because Ali Ahmed's denial of 

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such behavior is not credible, -
it is more likely than not that 

Petitioner fought with al-Qaida. Tr. at 15-16 (Apr. 17, 2009). 

The Government's position on this charge rests on its mosaic 

theory. The theory cannot support the charge. 

First, it is extremely significant that there is absolutely no 

"direct" evidence, at whatever hearsay level, of Ali Ahmed's 

participation in battle. The Government has not pointed to any 

statement in the record that directly accuses the Petitioner of 

fighting. Tr. at 22 (Apr. 17, 2009). This weighs heavily with the 

Court. 

Second, assuming for the moment that the patchwork of evidence 

woven together by the Government is suggestive of the fact that Ali 

Ahmed's version of the events is not accurate and that he did 

travel with al-Qaida and/or Taliban fighters, it still falls far 

short of establishing the more serious charge that he took up arms 

in support of al-Qaida and/or the Taliban. Given the gaps in the 

evidence, the Government must do more than rely on evidence of 

associations to support the inference that Ali Ahmed actually 

fought in battle. 

Even if the evidence is to be believed that Petitioner's story 

is false and that he was in Afghanistan, there simply is nb 

affirmative proof that he took up arms. The Court will not make 

the leap that the Government does, that simply because he was in 

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Afghanistan, he was there to -
 fight. 

Similarly, assuming that the Government's evidence of Ali 

Ahmed's time in Afghanistan is reliable, it does not represent 

strong enough evidence from which to infer that he participated in 

the fighting. Although Petitioner 

would contradict Petitioner's explanation of his 

whereabouts at the relevant time, it is not per se evidence of 

from proof that he actually fought 

wrongdoing. Likewise, 

several steps removed 

Even if one assumes, arguendo, that Ali Ahmed was indeed in 

Afghanistan, 9 Petitioner argues that one reason he may have 

traveled with certain people is because of the chaos in the area as 

thousands attempted to flee a war-torn country. There is ample 

evidence in the record that Afghanistan was in chaos during this 

period, and that legions of people were trying to cross the border 

into Pakistan in order to flee the violence. Pet. Ex. 82 

at 2 (describing thousands of refugees in 

Khowst, Afghanistan) ; Pet. Ex. 105 at 

~~A.4-5. Given this reality, it may indeed be the case that a 

Government often accuses the Petitioner of 

lIIIIIIIIIIIIIand therepy conceding the accuracy of certain facts, 

when all counsel is doing is arguing in the alternative. This 

legitimate, oft-used strategy does not concede or waive any issues. 

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young Arab man sought the company -
of those individuals with whom he 

shared a common language, religion, and culture, and that he may 

have gone on to stay with these same men upon arriving back a~

I11III. The bottom line is that even if Ali Ahmed lied about being 

in Afghanistan, that fact is not a sufficient basis for leaping to 

the conclusion that he fought with al-Qaida and/or the Taliban. 

2. Training 

There is one direct piece of evidence in the record, allegedly 

"corroborated" by other witness' statements, that indicates that 

Ali Ahmed received military training in Afghanistan. _s 

the source of the statement, which is reported as, "191 -_ 

received military training in Afghanistan near Kabul." Gov. Ex. 1 

at 9. The Government argues that this evidence, in combination 

with other witnesses' statements that place the Petitioner in 

Afghanistan and in the company of al-Qaida fighters, demonstrates 

that Ali Ahmed did indeed receive military training. 

There are significant questions about the reliability and 

accuracy statement. The nine-word hearsay 

allegation made byllllllllllllboes not describe the training with 

any specificity. For example, there are no details about which 

camp the training took place at, how long that training lasted, or 

what the training consisted of. The interview with was 

conducted in English and Arabic without an interpreter. rd. at 1. 

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-


A related infirmity of the statement is that it does not 

purport to be based on direct observations. It is 

simply a declarative statement that IIIIIIIItrained at some point, 

without any information as to h01llllllllllllrnew that. Even more 

troubling is the fact that, in later interrogations, when. 

IIIIIIII was asked to list the names of those he trained with, he

did not include the Petitioner. 

2003)) at 1-2. Despite these 

Pet. Ex. 69 MFR (Apr. 25, 

glaring weaknesses 

brief nine-word statement, the Government asks the Court to infer 

nd the Petitioner trained at the same camp. Tr. 

at 66-67 (Apr. 16, 2009). 

Whether true 

Government never brought this 

10 the Court 

that 

Id. at l. 

comment to the 

Interestingly, the 

Court's attention. 

-
-26­
or not, it is pure speculation. -
ll 

The larger issue is that initial identification 

suffers from serious reliability problems. First and foremost, the 

detainee made the inculpatory statement at Bagram Prison in 

Afghanistan, about which there have been widespread, credible 

reports of torture and detainee abuse. See, e.g., Golden, Bagram, 

supra, at 19; Pet. Ex. 86 at ~12.

11 was later interrogated on many other 

occasions. He never again mentioned Ali Ahmed, just as no other 

detainee or other individual whose statements appear in the record 

accused the Petitioner of training. 

12 The same report asserts that _ has never 

[actually] been tortured since being t~ustody in 

Pakistan." Pet. Ex. 68 at 1. 

-
-27­
technique," carries less weight -
in this case. Gov, Ex. 14 (Decl. 

of at 2-3. 

In addition, it does not follow, as the Government argues, 

that recanting with respect to another detainee was 

the extent of all his false allegations; simply because he admitted 

that he falsely implicated some people here does not mean that he 

was truthful at all other times. Second, s sole 

identification of the Petitioner named him as "191 -liliiii' Gov. 

Ex. 1 at 9. Petitioner denies that this is his actual name, or 

that he ever used the kunya, _" He argues that 

identifications based on this name are problematic becausellllllis 

a fairly common nickname in Arab countries, somewhat equivalent to 

to the use of "Joe" or "Buddy" in this country. Tr. at 83-84 (Apr. 

16, 2009); see also Pet. Ex. 55 (Classified Tr. of Feb. 26, 2009 

Status Conference) at 23 (Government represented that liliiii is a 

very common name. If you run the name~hrOUgh [a search of 

the Government's records] you will get thousands, potentially tens 

of thousands of documents or hits."). 

The Government admits that there is confusion over who "191 ­

liliiii refers to in this context. Tr. at 14-15 (Apr. 17, 2009). 

The number 191 refers to the detainee number assigned at Bagram. 

The Government "preliminarily" admitted that two detainees were 

given this same number -- both Ali Ahmed and 

-
-28­
Id. at -
14; see Pet. Ex. 120 (IBN. 

Memorandum for Commander (Nov. 5, 2007)) at 10 n.51. 13 To further 

confuse matters, 1IIIIIIII actually admits to having had military 

training. Pet. Ex. 120 at 10 n.51. On this record, therefore, it 

is completely unclear to whom the words "191 -liliiii refer 

Petitioner, or someone else. The detainee number, of 

course, is central to the allegation of training as well as the 

rest of the Government's case. 

Third, the Government argues that the fact that 

made the allegation that _ received training in the same 

interrogation session where he made inculpatory statements about 

himself is indicative of his honesty and reliability. The Court 

finds this fact to be of limited significance. Any effort to peer 

into the mind of a detainee at Bagram, who admitted to fearing 

torture at a facility known to engage in such abusive treatment, 

simply does not serve to rehabilitate a witness whose initial 

credibility must be regarded as doubtful. 

Finally, reliability has been cast into doubt by 

At times, 

13 This admission was made on the second day of trial. On 

the first day, the Government insisted that evidence showing that 1IIIIIIII was assigned number 191 at Bagram was the product of a 

"typographical error" in the intelligence report. Tr. at 144 (Apr .. 

16, 2009). 

-
-29­
credibility are not 

-
 Pet. Ex. 114 (ISN 

tllllMemorandum for Commander (June 20,2008)) at 4. By the time of 

his at Guantanamo Bay, long after he made the 

only allegation that he would make against the Petitioner, 

intelligence reports indicated that 

Pet. Ex. 69 

These serious concerns 

compensated for by other pieces of the mosaic. 

That is simply incorrect. No statement of any 

other witness corroborates that Petitioner received military 

training in Afghanistan. At most, the statements of other 

witnesses suggest that Petitioner was in Afghanistan at some point. 

They do not address the training allegation. 

The Government argues that the surrounding details provided by 

make the training allegation 

more likely. However, it matters little that all these other 

witnesses place the Petitioner in a geographical area where 

military training was a logistical possibility. Without more, the 

Court simply cannot credit the allegation of training as a 

justifiable basis for further detention. See Gharani, at 7-8. 

3. Traveling 

A third major allegation, and important tile in the mosaic, is 

-
-30­
--

that Ali Ahmed traveled around -
Afghanistan 

and did so in the company of a band of 

the battlefield. This charge is related 

to the fact that the Petitioner was 

and placed in Afghanistan during a portion of time when 

he claims he was in Faisalabad. 1I11III the Government alleges, 

fled Afhganistan 

Pakistan, 

arrested 

crossed into 

where he was 

March of 2002. 

The Petitioner denies these charges, continues to assert that 

he remained at , and never entered Afghanistan except 

when he was detained at Bagram. Gov. Ex. 42 (IBN 692 FM 40 (Dec. 

12, 2003) at Ii Traverse at 26-29; 12. He attacks the 

Government's evidence that he was identified as .onthe ground 

that the statements were made by unreliable witnesses, some of whom 

had undergone torture in the past or feared the use of torture in 

the future. Traverse at 34-51. Demonstrating that, he argues, 

reveals that the allegations of his travel to Afghanistan are not 

true. 

Turning first to the point about_the Government sought 

to buttress its mosaic theory by presenting evidence thatlllllllll 

petitioner._" This name, it 

alleges, is his "kunya," a nickname of sorts. The practice of 

-31­
taking on a kunya is common in -
Arab countries. Gov. Ex. 7 (Decl. 

of "Names, Aliases, Kunyas and 

Varients") at 1-2. It is also a common practice among terrorists, 

as it serves as a method for concealing their true identities from 

enemy forces. Id. at 6. 

Although the Government agreed that the mere use of a kunya is 

not, in and of itself, sufficient evidence to justify detention, 

Tr. at 128 (Apr. 16, 2009), it argues that use of the kunyalllllllll 

is central to this case because it casts significant doubt on Ali 

Ahmed's account of his activities, and also demonstrates that each 

of the Government's wi tnesses provides credible evidence. The 

latter point is based on the fact that 

Petitioner1IIIIIIII 

See supra, at Part III.C. 

Petitioner denied to an interrogator ever using the kunya. Gov. 

Ex. 8 at 2. The Government submits that the numerous independent 

identifications of the Petitioner as _ cannot simply be a 

coincidence, and that it must be true that Ali Ahmed in fact does 

go by the namellllllll Gov's Mot. at 24, 28. 

The evidence the Government relies on to support its mosaic 

theory is problematic in several key ways. First, 

identification has been cast in significant question, due to the 

fact that it was elicited at Bagram amidst actual torture or fear 

-
-32­
of it. There are also serious -
questions about the particular 

individual who he identified at Bagram. _ appears to be a 

fairly common kunya, Pet. Ex. 55 at 23, and the obvious confusion 

over the record-keeping at Bagram does not make 

identification of this Petitioner a~ as opposed tollllllll 

a reliable one. 

See supra, a tPart . 

III. C. There is no way to know whether the Government's informants 

were staring at the same person, or if they were 

looking at completely different people. Without more, their 

identifications cannot carry the weight that the Government places 

on them. 

There are also problems with the relationship of the kunya 

evidence to the overall theory. Again, assuming that the 

Government's information is true, the immediate implications of it 

are not as damaging as the Government argues. If Ali Ahmed is 

liliiii it does suggest that he lied about at least some of his 

story. Also, it suggests that he entered Afghanistan at some 

point, and was later identified to have received military training. 

As demonstrated above, however, these allegations do not bear 

independent scrutiny because of the gaps in the record, and thus 

-
-33­
cannot be upheld in their own -
right. Accordingly, the predicate 

for establishing Ali Ahmed's identity aslllllllcannot sustain the 

Government's theory. 

4. 

Evidence was offered to establish that Ali Ahmed's undisputed 

stay at a guesthouse in Faisalabad i called , supports, at 

least in part, the conclusion that he is a substantial supporter of 

al-Qaida and/or the Taliban, as well as a trainee and fighter for 

one or both of those groups. The validity of this argument rests 

in large part on a guilt-by-association theory: i.e., the 

Government argues that because others at the guesthouse were 

involved with terrorist groups, and the Petitioner stayed there for 

a substantial period of time in their company, without having to 

pay for food or rent, he too must have been a terrorist. Combining 

these facts with the allegations that he trained and traveled with 

terrorist forces in Afghanistan, the Government believes the 

conclusion is inescapable that Petitioner is a member and/or 

substantial supporter of al-Qaida and/or the Taliban. 

The Government is not contending that staying at a guesthouse 

is per se evidence of terrorist activity in this case. Rather, 

such evidence provides "one more piece of the mosaic," which, when 

viewed as a whole, depicts Ali Ahmed as a member of enemy forces 

whose cover story simply has too many holes in it to be credited. 

-
-34­
The Government points out -
that _ the fighters who 

IIIIIIII said the Petitioner traveled with 

-- also 

stayed at Gov. Ex. 5 

Gov. Ex. 34 (June 19, 2002)) i Gov. Ex. 23 at 3-4. 

These .men admi tted to fighting on behalf of enemy forces, along 

with another guest staying at the house, 

_ Gov. Ex. 5 at 1 (reporting _ admission of fighting) i 

Gov. Ex. 34 at 2 (reporting liliiii admission) i Gov. Ex. 30 II1II 

(June 24, 2003)) at 1 (reporting admission) . 

information with all the other evidence it has presented, the 

Government argues that the logical inference is that Ali Ahmed was 

also involved with these terrorist groups. Tr. at 80-82 (Apr. 17, 

2009) . 

The evidence, as discussed above, is problematic. 1IIIIIIII 

who attested to horrendous incidents of torture, at one time gave 

inculpatory statements about Petitioner, at another time recanted 

those statements, and yet at a third time re-affirmed them. 

Further, identification of Petitioner is plagued by 

-
-35­
at 3; Pet. Ex. 45 

the doubts discussed supra, at -
Part III.D.2. Finally 

equivocal $tatement that Petitioner liliiii 

simply is not the material of which a 

reliable hearsay identification is made. Once those pieces of the 

mosaic have been removed because of their unreliability, the 

Government is left with what is essentially a charge of guilt by 

association. 

The problem with this charge is that there is no solid 

evidence that Ali Ahmed engaged in, or planned, any future 

wrongdoing while There 

is no evidence that he was arrested with any weapons or other 

terrorist paraphernalia; nothing of this kind was found in his 

locker. Pet. Ex. 6 at "18-20. Though others at the House, II1II , admitted their affiliation with al-Qaida, they 

did not implicate Ali Ahmed in any terrorist activity. Pet. Ex. 36 

Ali Ahmed was 

There is ample 

evidence in the record to indicate that guesthouses are common 

features of the region, serving as way stations for impoverished 

young men spending time away from home. 14 See, e.g., Pet. Ex. 7 

14 On the other hand, there is also evidence that 

guesthouses served essentially as barracks for terrorist fighters 

-
-36­
(Decl. of (Nov. -
30, 2008)) at ~5.

As noted, no weapons were found or seized during the arrest of 

_ 

Petitioner. Pet. Ex. 6 at ~~18-20. It is likely, based on 

evidence in the record, that at least a majority of the IIIIIIII 

Ji 

guests were indeed students,IS living at a guesthouse that 

was located close to a university. Pet. 's Mem. Of Points and 

Authorities in Support of Mot. For J. at 30-31 n.21-22; but see Tr. 

at 74 (Apr. 16., 2009) (demonstrating that Government contests 

remaining individuals were students). Further, even though the 

police arrested all of the men staying at the House, 

they appear to have ignored II1II the man who operated the House. 

If the was such a hotbed of terrorist activity, it is 

incomprehensible that its operator was not, at a minimum, detained 

for questioning. The evidence does not demonstrate, even as to 

associational guilt, that Ali Ahmed's stay at provides

justification for his detention. 

who had retreated from the front. Gov Mot. for J. on Record., Ex. 

1 (Decl. of , "Background Declaration - Guesthouses") 

at 1. 

IS Neither party ca~identifthe exact num.ber of guests at

but parties agreed is a reasonable number. Tr. 

17, 2009). individuals arrested there were 

detained at Guantanamo Bay and subsequently released; the 

Government represented that this was likely part of the 

Administrative Review Board process, and not because the Government 

determined that the two were not lawfully subject to detention. 

Tr. at 108 (Apr. 17, 2008). 

at 85 (Apr. 

-
-37­
Nor is the Government's -
 case strengthened by the charge that 

a 

man whom the Government has, at times, alleged is a "sworn member 

of al-Qaida," training-camp operator, travel facilitator', and major 

figure in the planning of 1999 attack against the United States. 

Factual Return at ~28 n.2.; but see Tr. at 78-79 (Apr. 17, 2009)

(explaining that disputes charge that he is sworn 

member of al-Qaida) .
 

The Government presents strands of evidence to tie 1111
 

It points out that one detainee claims that he 

was the director of a guesthouse in Peshawar, as well as a "Yemeni" 

guesthouse in Faisalabad. Gov. Ex. 27 (ISN 707 FD 302 (Sept. til 

2002)) at 1. The reliability of this statement is established via 

a weak inference that the witness knew 

based on the witness' visit· to a different guesthouse Of. 

stayed at 

Tr. at 77-78 (Apr. 17, 2009). It also points to the 

at some point, Gov. Ex. 44 _ FM-40 

The Government seeks to weave these disparate strands of 

evidence so as to suggest that 

and thereby strengthen its claims of Petitioner's 

-
-38­
---

...
 

associational guilt. The fabric -- or mosaic -- simply will not 

hold; the connections are too weak and attenuated. 

As a final attempt at providing more tiles for its l1li corner 

of the mosaic, the Government submitted for the first time on the 

initial day of the 

Petitioner made an
 

oral motion to strike the evidence. ~he Court denied the motion,
 

but made it clear to parties that this decision would be subject to
 

-39­
reconsideration after it had -
had an opportunity to hear all the 

evidence. 

The Court has elected to reconsider, and concludes that the 

evidence shall not be admitted. Having heard all of the testimony 

now, and in particular the testimony about the document and the 

context of its retrieval, the Court strikes the document on the 

grounds that its prejudicial value far outweighs any probative 

value. 11 See Fed. R. Evid. 403. (It should be noted that there is 

absolutely no evidence that the Petitioner either wrote or 

understood Russian, the language in which the document was written. 

Cf. Gov. Ex. 43 at 1 (recounting Petitioner's statement that he had 

to communicate with Russian guest using "hand 

signals") . ) 

5 • 

An additional tile in the Government's mosaic is the evidence 

11 nm 

was

t ere.

nt had already presented evidence purp~

a haven for terrorist activity, ...... 

that _men with admitted connections 

-
-40­
...
 

justification for detention; rather, according to the Government, 

it lends credence to other evidence that casts Ali Ahmed as more 

than an innocent student captured in the wrong place at the wrong 

time. 

...
 

-41­
-


-
-42­
just the 

four corners of the document, there is no indication that 1IIIIIIII 

cannot be credited as a 

piece of evidence that contributes in any way to a finding that it 

is more likely than not that Ali Ahmed was legally detained under 

the AUMF. 

IV. CONCLUSION 

For all the foregoing reasons, and for the reasons stated 

during the Hearing held on April 16-17, 2009, the Court grants the 

petition for a writ of habeas corpus. The Government has failed to 

prove, for all the reasons stated above, by a preponderance of the 

evidence, that AlIa Ali Bin Ali Ahmed was "part of, or 

substantially supported, Taliban or al-Qaida forces or associated 

forces that are engaged in hostilities against the United States or 

its coalition partners." 

As to the claim of participating in fighting, the Government 

produced virtually no credible evidence i as to the claim of 

receiving military training, the conclusory nine-word hearsay 

statement by does not show that it is more likely than 

-
-43­
not that he received such training; -
 as to the claim that he 

traveled around Afghanistan in 2001 and 2002 in the company of 

terrorist fighters fleeing the battlefield, even if the Government 

had proven this charge, which it did not, such a fact would not 

constitute substantial support; as to the evidence that he stayed 

at , the Government has certainly proven that he stayed 

there, but has utterly failed to present evidence that he was a 

sUbstantial supporter of al-Qaida and/or the Taliban while he did 

stay there; as to the Government's position about the significance 

of locating Petitioner's alleged kunya on a list, the Court finds 

this argument without any merit whatsoever. 

When taken all together as facts which comprise a mosaic 

theory, the evidence does not satisfy the Government's burden of 

proof: i.e., the Government's picture does not establish that it is 

more likely than not that Petitioner fought for the Taliban, that 

he received military training, that he traveled in Afghanistan with 

terrorists fleeing from the scene of war, that his stay at l1li 

II1II demonstrated he was a supporter of al-Qaida, 

Mindful of the limitations on the scope of the remedy in this 

situation, see Kiyemba v. Obama, 555 F.3d at 1024 (D.C. Cir. 2009), 

the Court further orders the Government to take all necessary and 

-
-44­
appropriate diplomatic steps -
to facilitate Petitioner's release 

forthwith, and to report back to the Court no later than June 

as to the status of Petitioner's release. 

lsi 

May _, 2009	 Gladys Kessler 

United States District Judge 

Copies to: Attorneys of Record via ECF 

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-45­